Wednesday, August 27, 2008

“HIV is a virus, not a crime"

“HIV is a virus, not a crime,” argued South African Supreme Court Justice Edwin Cameron during his impassioned call for “a campaign against criminalisation” on the final day of the XVII International AIDS Conference in Mexico City.

Justice Cameron’s plenary presentation was the vocalisation – and culmination – of a growing movement against criminalisation of HIV exposure and transmission that has been supported – and nourished – by organisations as powerful and diverse as UNAIDS and UNDP; the Global Network of People Living with HIV/AIDS (GNP+); the International Community of Women Living with HIV and AIDS (ICW); the International Planned Parenthood Federation (IPPF); the Open Society Institute; the Canadian HIV/AIDS Legal Network; and the AIDS and Rights Alliance for Southern Africa (ARASA); as well as many individual academics and HIV advocates.

However, he provided ten reasons why creating HIV-specific laws, or applying current assault laws, to anything other than intentional HIV transmission are “misdirected and bad” policy. Many of these arguments were developed from a paper that Justice Cameron recently published in JAMA, co-written with Scott Burris of Temple University Beasley School of Law and Michaela Clayton of ARASA.

Criminalisation is ineffective since it targets people already diagnosed, when studies show that most HIV transmission takes place during sex between two consenting adults neither of whom is aware that the other is infected with HIV.

Criminal laws and criminal prosecutions are “shoddy and misguided substitutes” for measures that really protect those at risk of contracting HIV. “We need effective prevention, protection against discrimination, reduced stigma, strong leadership, greater access to testing and most importantly, treatment,” he said.

Criminalisation victimises, oppresses and endangers women. Although policymakers’ impulse is often to protect women, “it is a grievously misguided impulse” because many laws, especially those in Africa, expose women “to assault, to ostracism and to further stigma” making them “more vulnerable to HIV, not less vulnerable. Rather, he argued, we need laws that guarantee a women’s social and economic status, and that enhance their “capacity to negotiate safer sex and to protect them for predatory sexual partners. We must change the social circumstances that will empower those women to say no when they wish to and to insist on protection when they want to.”

Criminalisation is often unfairly and selectively enforced. He noted that “prosecutions and laws single out already vulnerable groups like sex workers, men who have sex with men, and in European countries, black males.”

Criminalisation places blame on one person instead of responsibility on two. “The person who passes on the virus may be more guilty that the person who acquires it,” he said, “but criminalisation unfairly and inappropriately places all the blame on the person with HIV.”

Criminalisation laws are difficult and degrading to apply. “Those laws that target reckless, or negligent or inadvertent transmission of HIV only introduce uncertainty into an area that is already difficult to police,” he noted. “In court we look back with a clinical harshness of the lawyer's eye on the complexities of these transactions and I do not believe that it is proper for the law to do so.”

Many HIV-specific laws are extremely poorly drafted. He cited the example of Sierra Leone, based on the African Model Law, which explicitly criminalises mother-to-child transmission and is vague about who will be prosecuted and under what circumstances.

HIV criminalisation increases stigma. “It is stigma,” he said, “that I believe lies behind the enactment of these bad laws. Those laws seem attractive, but they are not prevention or treatment friendly. They are hostile to both. And this is simply because they add fuel to the fires of stigma. Prosecutions for HIV transmissions and exposure and the chilling content of the laws themselves reinforce the idea of HIV as a shameful, disgraceful, unworthy condition requiring isolation and ostracism.”

Criminalisation is a blatant disincentive to testing. “Why would a woman in Kenya want to go for an HIV test when she knows that it will expose her to seven years in jail?” he asked.

Criminalisation assumes the worst about people with HIV, and punishes their vulnerability.

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